Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. BA289095 Samuel Mayerson, Judge. Affirmed with modifications.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
Defendant Hector Reyna appeals from a judgment entered after a jury convicted him of first degree murder. (Pen. Code, §187, subd. (a).) The jury found true the allegations that defendant personally and intentionally discharged a firearm which caused great bodily injury and death (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally used a firearm. (§ 12022.53, subd. (b).) The jury also found true the allegation that the offense was committed for the benefit of a gang. (§ 186.22, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced to state prison for a total of 54 years to life consisting of 25 years to life on the base count, plus 25 years to life pursuant to section 12022.53, subdivision (d), plus four years pursuant to section 186.22, subdivision (b)(1)(A). A concurrent life sentence was imposed pursuant to section 186.22, subdivision (b)(4). Terms imposed pursuant to sections 12022, subdivision (b) and 12022, subdivision (c), were stayed.
We affirm with modifications.
CONTENTIONS
Defendant contends that: (1) the trial court committed prejudicial error in instructing the jury with CALJIC No. 2.11.5; (2) the trial court erred by refusing to instruct on self-defense and two theories of voluntary manslaughter; (3) the trial court erred in refusing to instruct with CALJIC No. 8.73; (4) the trial court improperly imposed a term for the enhancement pursuant to section 12022.53, subdivision (d); (5) the trial court should strike rather than stay the findings pursuant to section 12022.53, subdivisions (b) and (c); (6) the upper term imposed on the enhancement pursuant to section 186.22, subdivision (b)(1)(c) should be stricken; and (7) the abstract of judgment must be modified to reflect 518 days of presentence custody credit.
FACTS AND PROCEDURAL HISTORY
Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.
On December 25, 2004, Pedro Orozco (Orozco), who was not affiliated with a gang, was shot to death by defendant. The events leading up to his death were as follows. Defendant, known as “Slow,” or “Lento,” was a member of the Barrio Mojados gang. Defendant and Gilbert Salazar (Salazar), a member of a tagging crew called Crazy Soldiers, were hanging out with members of Barrio Mojados at an apartment. Barrio Mojados recruited from Crazy Soldiers and were rivals of the Loco Park gang, whom the Barrio Mojados gang referred to as “lollipops” as a sign of disrespect.
Salazar, who was wearing a black sweatshirt, left the apartment to get some marijuana and got on his bicycle. Orozco, who was walking on the sidewalk, said something to Salazar from about eight feet away. Orozco had a little red Swiss Army knife in his right hand. Salazar thought Orozco was high, and did not take him seriously or feel threatened. Defendant, who was wearing a grey sweatshirt, walked down the apartment stairs and got onto another bicycle. Orozco may have said something to him from 16 feet away. Salazar did not hear defendant say anything to Orozco. Salazar rode past defendant and then, from about 15 feet away, heard three or four gunshots. Salazar stopped, and defendant ran toward him with his right hand at his waistband and covered by his sweater. Defendant demanded Salazar’s bike, which he gave to him. Salazar walked back to defendant’s bike, got on it, and caught up with defendant. When Salazar asked defendant “why he did that,” defendant replied because the victim was a “lollipop,” and because he saw Orozco with a knife when he was talking to Salazar.
Henry Rodriguez (Rodriguez) heard gunfire from his car. He saw a man in a black sweatshirt on a bike, and a man in a grey sweatshirt holding something near his pocket under his sweatshirt. As the two men rode their bicycles past Rodriguez, he heard the man in the black sweatshirt ask “Is he dead?” and the man in gray reply “Maybe.”
Orozco’s blood alcohol level was between .10 and .13, and his bloodstream contained methamphetamine and marijuana, which may have been ingested up to three days before his death.
At trial Salazar testified that he did not see a blade, although in an interview with a detective in January 2005, Salazar stated that Orozco pulled the knife blade out. Salazar told Javier Coronado (Coronado) that defendant had used a nine-millimeter firearm to shoot Orozco after he pulled a knife on them. Coronado testified that defendant told him he had killed a “lollipop” from Loco Park by shooting him in the chest. When he was arrested on March 9, 2005, defendant gave officers a false name.
Los Angeles Police Officer Gerald Harden, a gang expert, had numerous encounters with members of the Barrio Mojados gang and was familiar with their graffiti, tattoos, and writings. Orozco was killed within Barrio Mojados territory. Miguel Miranda, a member of Barrio Mojados, was convicted of robbery and sale of narcotics. Officer Harden opined that defendant committed the murder for the benefit of the Barrio Mojados gang to protect their turf and members.
DISCUSSION
I. The trial court did not commit prejudicial error in instructing with CALJIC No. 2.11.5
Defendant first contends that the trial court prejudicially erred in instructing the jury with CALJIC No. 2.11.5 because it conflicted with CALJIC No. 2.20. We conclude that any error was not prejudicial.
The trial court has a duty to refrain from instructing on inapplicable legal principles which are irrelevant or confusing to the jury. (People v. Saddler (1979) 24 Cal.3d 671, 681.) Defendant complains that CALJIC No. 2.11.5 instructed the jury not to speculate as to why Salazar was not being prosecuted in the trial, yet CALJIC No. 2.20 instructed the jury that it could consider a grant of immunity from prosecution as a factor in assessing witness credibility. Therefore, defendant contends, the jury may have discounted Salazar’s grant of immunity in assessing his credibility.
CALJIC No. 2.11.5 as given, provided: “There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which that defendant is on trial. There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person has not been prosecuted in this trial or whether he has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial.”
CALJIC No. 2.20, as given, provided: “Every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witnesses, including . . . whether the witness is testifying under a grant of immunity.”
“CALJIC No. 2.11.5 should not be given where such other ‘persons’ actually appear at trial and testify for the prosecution. In such a case, it is entirely proper for the jury to consider whether cooperating accomplices avoided prosecution in return for testifying against defendant.” (People v. Sheldon (1989) 48 Cal.3d 935, 946.) But, if there is no reasonable probability that the outcome at trial would not have been different absent the error, the giving of the instruction is not prejudicial. (People v. Carrera (1989) 49 Cal.3d 291, 312-313 [CALJIC No. 2.11.5 not prejudicial where witness was granted immunity and other testimony implicated witness, in light of all instructions given]; People v. Sheldon, supra, at pp. 947-948 [CALJIC No. 2.11.5 not prejudicial where substantial evidence of defendant’s guilt existed; defendant had opportunity to cross-examine witness; and instructions were given on accomplice liability]; People v. Malone (1988) 47 Cal.3d 1, 50-51 [CALJIC No. 2.11.5 not prejudicial where jury had before it evidence, argument and instructions underscoring witness’s possible motive to lie and jury’s duty to view his testimony with distrust].)
Here, as in the above cited cases, the jury was instructed with CALJIC No. 1.01, to consider all of the instructions in light of all of the others, and CALJIC No. 2.20, to consider the bias and motives of a witness. As stated in People v. Malone, supra, 47 Cal.3d at page 51, “In the circumstances we believe ‘a reasonable juror would continue to act in accordance with the court’s charge on accomplice testimony, but would simply refrain from discussing or giving any consideration to the separate issue why [the defendant] was not being prosecuted in the present action or whether he . . . would be prosecuted.’ [Citation.]” Likewise, a reasonable juror would have considered the motive of Salazar in assessing his credibility, but would not have given consideration to why he was not being prosecuted in the instant matter.
We conclude that any error in giving CALJIC No. 2.11.5 was harmless. Accordingly, defendant’s argument that his counsel was ineffective for failing to object to the instruction also fails. To demonstrate ineffective assistance of counsel, a defendant must show counsel’s performance was deficient because his representation fell below an objective standard of reasonableness, as well as prejudice flowing from counsel’s performance. (People v. Price (1991) 1 Cal.4th 324, 386-387 [superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165].) Defendant cannot show that he suffered prejudice from his counsel’s failure to object.
II. The trial court properly refused to instruct on self-defense and voluntary manslaughter
Defendant urges that the evidence supported instructions on self-defense and voluntary manslaughter based on Salazar’s testimony that Orozco provoked Salazar and defendant with an open bladed knife while uttering confrontational gang language. We do not agree with his argument.
When the statutory elements of the charged offense cannot be committed without necessarily committing another lesser offense, the other offense is a necessarily included lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.) The trial court must instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. (Id. at p. 162.) But, the trial court is not obligated to instruct on theories that have no such evidentiary support. (Ibid.) “‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed.” (Ibid.)
A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter. (§ 192). When a defendant intentionally and unlawfully kills but lacks malice because he acts in a sudden quarrel or heat of passion he is guilty of voluntary manslaughter. (§ 192, subd. (a)). The killer’s reason must have actually been obscured as the result of strong passion aroused by a provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from passion rather than judgment. (People v. Breverman, supra, 19 Cal.4th at p. 163.)
“Imperfect self-defense applies where the defendant actually believes he or she is facing an imminent and unlawful threat of death or great bodily injury, and actually believes the acts which cause the victim’s death are necessary to avert the threat, but these beliefs are objectively unreasonable. [Citation.]” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1354.) “Imperfect self-defense is not a complete defense to homicide. However, it negates malice aforethought and thereby reduces a homicide which would otherwise be murder to voluntary manslaughter. [Citations.]” (Id. at pp. 1354-1355.) But, where the defendant believes he or she is facing an imminent and unlawful threat of death or great bodily injury, and believes the acts which cause the force applied upon the alleged victim are necessary to avert the threat, and these beliefs are objectively reasonable, the defendant has committed justifiable homicide by acting in self-defense. (Id. at p. 1357.)
Defendant requested CALJIC No. 8.40, on voluntary manslaughter; CALJIC No. 8.42 on sudden quarrel or heat of passion and provocation; CALJIC No. 5.12 on justifiable homicide in self-defense; and CALJIC No. 5.13 on justifiable homicide-lawful defense of self or another. Defendant states that the evidence shows Orozco confronted him, brandished a knife, and was trying to act “hard,” which defendant characterizes as typical gang behavior. Defendant also claims that the evidence shows he told Salazar that he shot Orozco because he was a “lollipop,” and that he had seen Orozco with a knife when he was talking to Salazar.
CALJIC No. 8.40, as requested provides: “[Defendant is accused [in Count[s] ___ ] of having committed the crime of voluntary manslaughter, a violation of section 192, subdivision (a) of Penal Code.] [¶] Every person who unlawfully kills another human being [without malice aforethought but] either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code section 192, subdivision (a). [¶] [There is no malice aforethought if the killing occurred [upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonable belief in the necessity to defend [oneself] [or] [another person] against imminent peril to life or great bodily injury].] [¶] The phrase, ‘conscious disregard for life,’ as used in this instruction, means that a killing results from the doing of an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another and who acts with conscious disregard for life. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A human being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and [¶] 4. The perpetrator’s conduct resulted in the unlawful killing. [¶] [A killing is unlawful, if it was [neither] [nor] [justifiable] [nor] [excusable].]”
CALJIC No. 8.42, as requested provides: “To reduce an unlawful killing from murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of the character and degree as naturally would excite and arouse the passion, and the assailant must act under the influence of that sudden quarrel or heat of passion. [¶] The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up [his][her] own standard of conduct and to justify or excuse [himself][herself] because [his][her] passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted [him][her] were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation. Legally adequate provocation may occur in a short, or over a considerable, period of time. [¶] The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment. [¶] If there was provocation, whether of short or long duration, but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful killing of a human being followed the provocation and had all the elements of murder, as I have defined it, the mere fact of slight or remote provocation will not reduce the offense to manslaughter.”
CALJIC No. 5.12, as requested provides: “The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [¶] 1. That there is imminent danger that the other person will either kill [him][her] or cause [him][her] great bodily injury; and [¶] 2. That it is necessary under the circumstances for [him][her] to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to [himself][herself]. [¶] A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one’s self from death or great bodily harm.”
CALJIC No. 5.13, as requested provides: “Homicide is justifiable and not unlawful when committed by any person in the defense of [himself][herself][his][her]______] if [he][she] actually and reasonably believed that the individual killed intended to commit a forcible and atrocious crime and that there was imminent danger of that crime being accomplished. A person may act upon appearances whether the danger is real or merely apparent.”
But, the evidence was scant regarding what, if anything, Orozco said to Salazar and defendant. In fact, Orozco’s interaction with Salazar, which only lasted for a matter of seconds, can hardly be considered a confrontation. Salazar stated that Orozco was about eight feet away from him and he could barely hear him. Also, defendant was not near Salazar when Orozco spoke to him. Moreover, defendant did not testify in his defense and Salazar merely testified that Orozco might have said something to defendant and that defendant said nothing to Orozco. Salazar himself dismissed Orozco as no threat, believing that Orozco was high on something. Indeed, Orozco’s blood alcohol level was between .10 and .13, and his bloodstream contained methamphetamine and marijuana.
Therefore, the evidence was insufficient to support giving CALJIC No. 8.42. Orozco’s actions were simply not enough to naturally excite and arouse the passion of an ordinary reasonable person so that person would act rashly and without deliberation and reflection. Nor did his actions support the giving of CALJIC No. 8.40, that defendant was acting in an actual but unreasonable belief in the necessity to defend himself or Salazar against imminent peril to life or great bodily injury. There is no evidence showing that defendant believed he or Salazar were in imminent peril, or that he believed the little Swiss Army knife could pose a real threat. The evidence merely shows that defendant could easily have walked away from Orozco, as did Salazar. It follows that defendant was not entitled to CALJIC No. 5.13, an instruction on justifiable homicide, lawful defense of self or another.
III. The trial court properly refused to instruct the jury with CALJIC No. 8.73
Defendant contends that the trial court erred in refusing to instruct with CALJIC No. 8.73. That instruction, as requested by defendant, provided: “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.” Defendant contends his subjective mens rea could be considered in determining whether his rage in response to Orozco’s belligerency and actions in brandishing a blade created a reasonable doubt of whether defendant premeditated and deliberated his actions.
We conclude that there was insufficient evidence of provocation on the part of Orozco to support the requested instruction. As previously discussed, Orozco’s actions were dismissed by Salazar as no threat and it is unclear what, if anything, Orozco may have said to defendant.
IV. The trial court properly imposed a term for the enhancement pursuant to section 12022.53, subdivision (d)
Defendant urges that the principle of “merger” as well as section 654 precluded the imposition of a consecutive 25-year-to-life term for intentionally and personally discharging a firearm which proximately caused great bodily injury or death, pursuant to section 12022.53, subdivision (d.). We disagree with defendant’s argument. The merger doctrine has been applied only in the context of felony murder and assault. And, Division Five of this appellate court has specifically refused to extend application of the merger doctrine to enhancements.
Section 12022.53, subdivision (d) provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
Under the “merger doctrine,” the felony murder rule should not be applied when the only underlying felony committed by the defendant is assault, because the assault is an integral part of the homicide. (People v. Sanders (2003) 111 Cal.App.4th 1371, 1374.) That is, the felony of assault is “‘merged’” into the homicide. (Ibid.) “To hold otherwise would relieve the prosecution in most homicide cases of the need to prove malice, as most homicide cases involve assault. [Citation.]” (Ibid.)
As defendant concedes, Division Five of this appellate court, in People v. Sanders, supra, rejected the extension of the merger doctrine to enhancements. (People v. Sanders, supra, 111 Cal.App.4th at p. 1374.) The appellate court recognized that the policy underlying the merger doctrine does not apply to sentence enhancements, stating “The California Supreme Court has ruled that the merger doctrine applies to ‘certain inherently dangerous felonies,’ and permits them to be used ‘as the predicate felony supporting application of the felony-murder rule’ only when this ‘will not elevate all felonious assaults to murder or otherwise subvert the legislative intent.’ [Citations.]” (Ibid.)
Additionally, the appellate court noted that the jury has the ability to find the firearm enhancements not true if it has a reasonable doubt, and therefore a murder charge would not be bootstrapped onto the underlying charge as it would in the case of felony murder and assault. (People v. Sanders, supra, 111 Cal.App.4th at p. 1375.) Finally, while the merger doctrine prevents the elimination of the prosecution’s need to prove malice in homicide cases, in the case of a firearm enhancement, the prosecution’s burden is not reduced, because the conduct underlying the enhancement must be proven beyond a reasonable doubt. (Ibid.)
The appellate court also rejected the defendant’s argument that section 654 precludes enhancement of a sentence under section 12022.53, subdivision (d). It stated: “‘[S]ection 654 does not bar imposition of a single firearms use enhancement to an offense committed by the use of firearms, unless firearms use was a specific element of the offense itself. Indeed, where imposition of a firearms use enhancement is made mandatory notwithstanding other sentencing laws and statutes, it is error to apply section 654 to stay imposition of such an enhancement.’ [People v. Hutchins (2001) 90 Cal.App.4th 1308, 1314.]” (People v. Sanders, supra, 111 Cal.App.4th at p. 1375.)
Section 654 provides: “An act or omission that is punishable in different ways by different provisions of the law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
We find the above rationale and authorities persuasive and we are not convinced that the merger doctrine should be applied to any factual situation beyond the felony murder and assault or that section 654 prohibits the imposition of an enhancement under section 12022.53.
V. The trial court properly stayed rather than struck the findings pursuant to section 12022.53, subdivisions (b) and (c)
Defendant next contends that the trial court erred in imposing and staying the firearm enhancements under section 12022.53, subdivisions (b) and (c), instead of striking them as he claims is mandated by section 12022.53, subdivision (f). We disagree with his contention.
In People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte) Division Four of this appellate court discussed the conflict between section 12022.53, subdivisions (f) and (h). Subdivision (f) states that only one enhancement may be imposed under section 12022.53, but subdivision (h) prohibits striking any enhancement imposed under section 12022.53. Harmonizing the two sections, the Bracamonte court held that each section 12022.53 enhancement should be imposed with a stay of execution for all but the enhancement with the greatest term of imprisonment. (Bracamonte, supra, at p. 713.) Division Seven of this appellant court followed the reasoning of Bracamonte in People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062.
Section 12022.53, subdivision (f) provides: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).” On the other hand, subdivision (h) of section 12022.53 provides: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
We agree with the holding of Bracamonte and conclude that the trial court correctly imposed the applicable enhancement for each firearm discharge and use allegation found true under section 12022.53, and then stayed the execution of all such enhancements except the one providing for the longest prison term. In support of his argument to the contrary, defendant relies on a Third Appellate District opinion that disagreed with Bracamonte, but which is not citable because review has been granted. (Cal. Rules of Court, rule 8.1115.)
People v. Gonzalez (2006) 146 Cal.App.4th 327, review granted March 14, 2007, S149898.
VI. The four-year enhancement pursuant to section 186.22, subdivision (b)(1)(c) shall be stricken and the judgment modified
Defendant contends that the trial court improperly imposed a consecutive four-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(A). The People concede the point. People v. Lopez (2005) 34 Cal.4th 1002, 1007-1009 holds that pursuant to section 186.22, subdivision (b)(5), a defendant serving a life sentence must serve a minimum of 15 years before being considered for parole. This parole eligibility period is imposed in lieu of the determinate enhancement under section 186.22 (b)(1), not in addition to it. (People v. Lopez, supra, 34 Cal.4th at p. 1006.)
Section 186.22, subdivision (b)(5) states, in pertinent part: “[A]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.”
The judgment shall be modified to strike the four-year enhancement pursuant to section 186.22, subdivision (b)(1)(A), and require that defendant serve 15 years prior to being considered for parole. In light of our conclusion, we need not consider defendant’s claim, made in a supplemental opening brief, that imposition of the upper term enhancement of four years is improper under Cunningham v. California (2007) 549 U.S. ____[127 S.Ct. 856].
VII. The judgment shall be modified to reflect 518 days of presentence custody credit
The People concede that under section 2900.5, subdivision (a), the judgment may be modified to reflect 518 days of actual presentence custody credit. (People v. Herrera (2001) 88 Cal.App.4th 1353, 1366 [murderers are entitled to presentence credits for time actually served].)
DISPOSITION
The judgment is modified to strike the four-year enhancement imposed pursuant to section 186.22, subdivision (b)(1)(A), and require that defendant serve 15 years before parole eligibility, and to reflect that defendant shall be awarded a total of 518 days of actual presentence custody credit. In all other respects, the judgment is affirmed.
We concur: DOI TODD Acting P. J., CHAVEZ J.